Dailey v. North Coast Life Insurance

Talmadge, J.

(concurring in part, dissenting in part) — The principal issue in this case is whether the Legislature intended by its 1993 amendments to RCW 49.60, our Law Against Discrimination, to incorporate the remedy of exemplary damages allowed in federal civil rights actions. Although I agree with the majority that the trial court erred in granting summary judgment for Ms. Dailey in this case, I disagree with the majority’s analysis on exemplary damages under RCW 49.60.030(2), and therefore write separately.

A. Federal Law

Prior to 1991, a successful federal civil rights plaintiff generally could not recover exemplary damages. See 42 U.S.C. §§ 2000e-5. In the 1991 Civil Rights Act, Congress included a new statutory section, 42 U.S.C. § 1981a, which provides:

In an action brought by a complaining party under section 706 or 717 of the Civil Rights Act of 1964 [42 U.S.C. §§ 2000e-5, 2000e-16] against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) prohibited under section 703, 704, or 717 of the Act [42 U.S.C. §§ 2000e-2, 2000e-3], and provided that the complaining party cannot recover under section 1981 of this title, the complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent.

Under the terms of the statute, a successful litigant under the Civil Rights Act of 1964 can recover exemplary damages.

The majority determines the 1991 Civil Rights Act may not have amended the 1964 Civil Rights Act, majority op. at 576, based on an argument first raised by amicus Washington Defense Trial Lawyers Association that 42 U.S.C. § 1981a is a separate section and does not actually amend the text of the Civil Rights Act of 1964. This hypertechnical argument ignores the plain language of 42 U.S.C. § 1981(a)(1) allowing exemplary damages in "an action brought by a complaining party under § 706 or 717 of the Civil Rights Act of 1964 . . .”

Moreover, there is no federal authority supporting the position advanced by the majority and the Washington Defense Trial Lawyers Association. In McGinnis v. Kentucky Fried Chicken, 42 F.3d 1273 (9th Cir.), amended and superseded by 51 F.3d 805 (9th Cir. 1994), the United States Court of Appeals for the Ninth Circuit specifically held punitive damages are allowed under the Civil Rights Act of 1964 as amended by the 1991 Civil Rights Act: "Punitive damages are authorized by that statute today.” Id. at 807. The United States Supreme Court in Landgraf v. U.S.I. Film Prods., 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994) similarly held exemplary punitive damages were available under the Civil Rights Act of 1964. As interpreted by the federal courts, successful federal civil rights claimants may recover exemplary damages under the 1964 Civil Rights Act, as amended by the 1991 legislation, as a means of enforcing federal antidiscrimination law.

B. Washington Law

In 1993, the Washington Legislature adopted amendments to RCW 49.60.030(2) relating to private actions under RCW 49.60, allowing a party to seek:

to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, . . .

Laws op 1993, ch. 69, § 1; Laws op 1993, ch. 510, § 3(2) (emphasis added.) The "as amended” language was adopted in two separate legislative, enactments by the 1993 Legislature, ch. 69, Laws of 1993, § 1 and ch. 510, Laws of 1993, § 3(2). The Legislature reenacted RCW 49.60.030(2) in its present form combining the disparate amendments to RCW 49.60.030 in Ch. 135, Laws op 1995, § 3. Thus, on three separate occasions in 1993 and 1995, the Legislature adopted legislative language incorporating into RCW 49.60 remedies authorized by the 1991 amendment to the Civil Rights Act of 1964.

Notwithstanding this statutory language, the majority finds exemplary damages are unavailable to claimants under RCW 49.60.030 because of Washington’s strong public policy against punitive damages. Barr v. Interbay Citizens Bank, 96 Wn.2d 692, 635 P.2d 441, amended, 649 P.2d 827 (1981). The majority asserts exemplary damages are unavailable under Washington law in the absence of express statutory authorization. By this, the majority seems to mean the Legislature must use the specific words "punitive damages.” This argument is too literal and ignores the clear direction of RCW 49.60.030 and the legislative history of the state and federal enactments.

By 1995, when the Legislature again amended RCW 49.60.030(2), the Legislature had the benefit of the decisions in Landgraf and McGinnis. In McGinnis, the Ninth Circuit held exemplary damages are available to successful claimants under RCW 49.60 because RCW 49.60.030(2) incorporated federal remedies and the Civil Rights Act of 1964, as amended in 1991, permitted successful claimants to recover exemplary damages. Nor was the Legislature ignorant of the nature of its own actions. As we have stated:

The Legislature is presumed to be aware of judicial interpretation of its statutes. Friends of Snoqualmie Valley v. King County Boundary Review Bd., 118 Wn.2d 488, 496, 825 P.2d 300 (1992).

Another principle of statutory construction [is that] "Legislative silence regarding the construed portion of the statute in a subsequent amendment creates a presumption of acquiescence in that construction.” Baker v. Leonard, 120 Wn.2d 538, 545, 843 P.2d 1050 (1993).

State v. Ritchie, 126 Wn.2d 388, 393, 894 P.2d 1308 (1995). See also State v. Young, 125 Wn.2d 688, 696, 888 P.2d 142 (1995); In re Foreclosure of Liens, 117 Wn.2d 77, 86, 811 P.2d 945 (1991) (the Legislature is presumed to know existing case law in areas in which it is legislating). The Legislature had to know it was incorporating the federal remedy of punitive damages into RCW 49.60.

By adopting the "as amended” language in 1993 and 1995, the Legislature intended to incorporate federal remedies in RCW 49.60. But the majority’s interpretation of RCW 49.60.030(2) renders virtually meaningless the Legislature’s intent. RCW 49.60.030(2) specifically mentions injunctive relief, and recovery of actual damages, costs and a reasonable attorney fee. We have already allowed expert witness fees as a cost of litigation. Xieng v. Peoples Nat'l Bank, 120 Wn.2d 512, 528, 844 P.2d 389 (1993). The reference to federal law remedies must be intended to expand upon the already mentioned remedies. However, beyond injunctive relief, compensatory damages, costs and attorney fees, nothing of substance is left but the punitive damages added to federal law in 1991. The Legislature clearly understood it was adopting exemplary damages as part of Washington’s antidiscrimination law when it amended RCW 49.60.030(2) in 1993 and 1995.

C. Retroactive Application of the 1993 Amendments

The final question relates to retroactive application of RCW 49.60.030(2) in Ms. Dailey’s case. All parties in this case agree Julie Dailey’s cause of action under RCW 49.60 arose at the time of her wrongful termination on March 16, 1990, and had she pursued a cause of action under federal law she could not have recovered exemplary damages.

In Landgraf, a former employee brought an action alleging sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964. The United States Supreme Court held the provisions of the 1991 Civil Rights Act, including 42 U.S.C. § 1981a, do not apply to a case pending on appeal when the statute was enacted, and had prospective effect only. The Court declined to apply the 1991 amendments retroactively unless Congress made clear such an intent. The Court found no such clear Congressional intent for retroactive application of the 1991 amendments. Landgraf, 114 S. Ct. at 1505.

Counsel for Ms. Dailey argues the amendments to RCW 49.60.030(2) must be applied retroactively because they are remedial in nature. I disagree. Because the Legislature adopted a federal remedy, we are obliged to construe the federal remedy in accordance with Congressional intent as understood by the federal courts. Xieng, 120 Wn.2d at 528-29. The United States Supreme Court in Landgraf determined the 1991 amendments to the Civil Rights Act of 1964 providing for compensatory and punitive damages could not be retroactively applied. If Ms. Dailey may not recover exemplary damages under federal law, she may not recover exemplary damages under RCW 49.60.030(2), as amended.

Johnson, Alexander, and Sanders, JJ., concur with Talmadge, J.